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Right to Rent - How the Home Office is expanding the scheme

The right to rent scheme has recently come under attack from the Joint Council for the Welfare of Immigrant (“JCWI”), who have threatened a pre-emptive challenge to the Government’s plan to expand the scheme into Scotland, Wales and Northern Ireland. JWCI claim that the Government has failed to properly assess whether, as they allege, the scheme has a discriminatory impact on BME, non-British and non-European people who are trying to find rented accommodation. Separate research conducted by JWCI and the Residential Landlords Association has shown evidence that minorities are disadvantaged by the right to rent scheme when looking for accommodation.

There is little doubt among industry professionals that if a Conservative majority is returned to Parliament, the Government will seek to expand the scheme to cover the whole of the United Kingdom. A prolonged legal battle appears to be inevitable; there is little appetite for ‘Right to Rent’ among the devolved governments of Scotland, Wales and Northern Ireland. Immigration is a reserved matter (meaning the Westminster Parliament makes laws covering the whole UK), but right to rent also touches on housing policy, which is a devolved matter. By convention, Parliament does not make laws relating to devolved matters without the consent of the devolved legislatures.

There are political and legal challenges to the geographic expansion of right to rent, but the Government is also quietly expanding the scope of the scheme in England. Internal Home Office guidance for immigration enforcement staff now requires a Notice of Letting to a Disqualified Person (“NDLP” in Home Office jargon) to be served on landlords where officials identify that a person who has no right to rent has been granted a residential tenancy agreement.

The NDLP is a two-edged sword – the landlord must make steps to end the tenancy agreement within a reasonable timeframe or they might commit a criminal offence. However, service of the NDLP will also activate additional lawful methods of eviction for the landlord.

We expect that NDLPs will start to be seen more frequently now that Home Office staff are required by departmental policy to serve them wherever the opportunity is there. There are also plans for “bespoke data sharing exercises” between the Home Office and other government departments to identify opportunities to serve an NDLP. If so inclined, Landlords can request an NDLP if they wish to evict a person who has no right to rent and they need to rely on an eviction power created by the Immigration Act 2016. In some circumstances, requesting an NDLP may be the only way for a landlord to avoid committing a criminal offence. These activities will be administered by a specialist “Evictions Team” within the Home Office.

The enforcement guidance also shows that Home Office are prepared to serve an NDLP with respect to a tenancy which began before the right to rent scheme was rolled out across England (on 1 February 2016). This means that the right to rent scheme will now touch all tenancies in England, no matter when they began.